 |
 |
 |
MR. JUSTICE BLACK
delivered the opinion of the Court.
MR. JUSTICE FRANKFURTER,
concurring.
MR. JUSTICE ROBERTS, MR.
JUSTICE MURPHY, and MR. JUSTICE JACKSON,
dissenting.
MR. JUSTICE FRANKFURTER, concurring.
According to my reading of Civilian Exclusion
Order No. 34, it was an offense for Korematsu to be found in Military
Area No. 1, the territory wherein he was previously living, except
within the bounds of the established Assembly Center of that area.
Even though the various orders issued by General DeWitt be deemed
a comprehensive code of instructions, their tenor is clear and
not contradictory. They put upon Korematsu the obligation to
leave Military Area No. 1, but only by the method prescribed in
the instructions, i. e., by reporting to the Assembly Center.
I am unable to see how the legal considerations that led to the
decision in Hirabayashi v. United States, 320 U.S. 81, fail to
sustain the military order which made the conduct now in controversy
a crime. And so I join in the opinion of the Court, but should
like to add a few words of my own.
The provisions of the Constitution which
confer on the Congress and the President powers to enable this
country to wage war are as much part of the Constitution as provisions
looking to a nation at peace. And we have had recent occasion
to quote approvingly the statement of former Chief Justice Hughes
that the war power of the Government is "the power to wage
war successfully." Hirabayashi v. United States, supra
at 93; and see Home Bldg. & L. Assn. v. Blaisdell, 290 U.S.
398, 426. Therefore, the validity of action under the war power
must be judged wholly in the context of war. That action is not
to be stigmatized as lawless because like action in times of peace
would be lawless. To talk about a military order that expresses
an allowable judgment of war needs by those entrusted with the
duty of conducting war as "an unconstitutional order"
is to suffuse a part of the Constitution with an atmosphere of
unconstitutionality. The respective spheres of action of military
authorities and of judges are of course very different. But within
their sphere, military authorities are no more outside the bounds
of obedience to the Constitution than are judges within theirs.
"The war power of the United States, like its other powers
. . . is subject to applicable constitutional limitations",
Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 156. To recognize
that military orders are "reasonably expedient military precautions"
in time of war and yet to deny them constitutional legitimacy
makes of the Constitution an instrument for dialectic subleties
not reasonably to be attributed to the hard-headed Framers, of
whom a majority had had actual participation in war. If a military
order such as that under review does not transcend the means appropriate
for conducting war, such action by the military is as constitutional
as would be any authorized action by the Interstate Commerce Commission
within the limits of the constitutional power to regulate commerce.
And being an exercise of the war power explicitly granted by
the Constitution for safeguarding the national life by prosecuting
war effectively, I find nothing in the Constitution which denies
to Congress the power to enforce such a valid military order by
making its violation an offense triable in the civil courts.
Compare Interstate Commerce Commission v. Brimson, 154 U.S.
447; 155 U.S. 3, and Monongahela Bridge Co. v. United States,
216 U.S. 177. To find that the Constitution does not forbid the
military measures now complained of does not carry with it approval
of that which Congress and the Executive did. That is their business,
not ours.
|
|
|
© 1995 - 2008, Touro Law Center